The Texas Health and Human Services Commission (HHSC) adopts, on behalf of the Department of Aging and Disability Services (DADS), new §92.21, in Subchapter B, Application Procedures; an amendment to §92.64, in Subchapter D, Facility Construction; and an amendment to §92.551, in Subchapter H, Enforcement in Chapter 92, Licensing Standards for Assisted Living Facilities. New §92.21 is adopted with changes to the proposed text published in the April 22, 2016, issue of the Texas Register (41 TexReg 2873). The amendments to §92.64 and §92.551 are adopted without changes to the proposed text.

The amendments and new section are adopted to implement Texas Health and Safety Code (THSC) §247.022, as amended by House Bill (H.B.) 1769, 84th Legislature, Regular Session, 2015. Texas Health and Safety Code §247.022(d) allows an assisted living facility (facility) license applicant in good standing to request that DADS issue an initial license that does not require an on-site health inspection. Texas Health and Safety Code §247.022(d) also prohibits DADS from requiring an applicant in good standing that requests an initial license to admit a resident to the facility before DADS issues an initial license. The criteria for being in good standing are listed in THSC §247.022(f). Texas Health and Safety Code §247.022 requires a license applicant in good standing to submit for DADS approval the applicant's policies and procedures, verification of employee background checks, and employee credentials before DADS issues an initial license. Texas Health and Safety Code §247.022 requires a facility that is issued an initial license in accordance with THSC §247.022(d) to disclose to residents and prospective residents that the facility has not yet met the requirements of an on-site health inspection. Texas Health and Safety Code §247.022 requires DADS to conduct an on-site health inspection within 90 days after DADS issues an initial license. The adoption sets forth the requirements for an applicant in good standing to obtain an initial license, allows a facility to admit more than three residents after it receives an initial license, and allows DADS to impose an administrative penalty if a facility does not disclose to residents and prospective residents that it has not met the requirements of an on-site health inspection.

DADS made changes to the text of §92.21(c)(2)(A) to clarify that the provision relates to a violation of a licensing rule, and to clarify that, in determining if an applicant is in good standing, a cited violation that the facility challenges will be considered only if the violation was affirmed or a final determination on it is pending.

DADS received written comments from the State Long Term Care Ombudsman and the staff ombudsman with The University of Texas Health Science Center in Houston on the proposed rules. A summary of the comments and the responses follows.

Comment: A commenter recommended the addition of a requirement for a facility that obtains a license before a health inspection to notify the State Long-Term Care Ombudsman within five business days of receiving the license.

Response: The agency will include the practice in its operational procedures and notify the State Long-Term Care Ombudsman within five business days after issuing a license to an applicant in good standing. No changes were made in response to the comment.

Comment: A commenter expressed concerns regarding initial licensure applicants who meet the criteria for good standing in proposed §92.21 and who apply for an Alzheimer's certification simultaneously. The commenter stated the rule does not address how Alzheimer's certification should be treated if a facility receives a license without an initial health inspection. The commenter recommended that DADS not issue Alzheimer's certification to a facility until the agency conducts a health inspection of the facility and the applicant meets the requirements for licensure because of the vulnerable nature of potential residents.

Response: The rule project implements legislation regarding initial licensure of Type A and Type B facilities. The agency will consider Alzheimer's certification for applicants in good standing in the future. No changes were made in response to the comment.

Comment: A commenter noted "actual harm" is not defined in Chapter 92 and recommended creating a definition that correlates with current and future violations.

Response: The agency defines actual harm in proposed §92.21(c)(2)(A)(i)(I) as a negative outcome that compromises the resident's physical, mental, or emotional well-being. The agency will train surveyors to help ensure that actual harm is recognized and enforced consistently across all regions, and will develop a process to track instances of actual harm. No changes were made in response to the comment.

Comment: A commenter recommended that licensure applicants who operate facilities in other states should also be required to meet the good standing requirements.

Response: Texas Health and Safety Code §247.022(f), as amended by H.B. 1769, applies to a license applicant or a controlling person of a license applicant that has, in addition to other criteria, operated or been the controlling person of a facility in Texas for at least six consecutive years. An applicant that has operated a facility in another state does not meet this statutory requirement. No changes were made in response to the comment.

Comment: A commenter suggested that, although the proposed amendment to §92.21(g) requires a facility to attach an addendum to the disclosure statement to notify all residents and prospective residents that the facility has not met the requirements of the initial on-site health inspection, the disclosure statement itself should include information explaining that the facility has not met the requirements of an initial health inspection.

Response: The agency added to §92.21(g) the minimum information a facility must include on an addendum. The agency chose to require an addendum explaining that the facility has not met the requirements of an initial health inspection, rather than require a facility to change the actual disclosure form, because this is a temporary status for the facility.

Comment: A commenter recommended a requirement for a facility that has not had an on-site health inspection to disclose that status on the Long Term Care Quality Reporting System (QRS) Provider Report.

Response: The purpose of QRS is to provide the results of a facility's most recent survey and to document violations of licensing rules. The results of an initial health survey are available to the public on the DADS website after DADS conducts the survey. No changes were made in response to the comment.

Comment: A commenter suggested a requirement for all facilities to display a disclosure statement in view of potential long-term care stakeholders or customers until a health inspection is completed.

Response: Staff at a facility must explain and provide a copy of the disclosure statement to an individual, family or responsible party before admitting the individual to the facility. Notification that the facility has not met the requirements of an on-site health inspection must be on an addendum attached to the disclosure statement until the facility meets those requirements. Because §92.21 applies only to an initial license, all individuals who are admitted to the facility will receive the disclosure statement with the addendum. The agency believes that this notification is sufficient and, therefore, requiring a facility to display a disclosure statement is unnecessary. No changes were made in response to the comment.

The new section is adopted under Texas Government Code, §531.0055, which provides that the HHSC executive commissioner shall adopt rules for the operation and provision of services by the health and human services agencies, including DADS; Texas Human Resources Code, §161.021, which provides that the Aging and Disability Services Council shall study and make recommendations to the HHSC executive commissioner and the DADS commissioner regarding rules governing the delivery of services to persons who are served or regulated by DADS, and Texas Health and Safety Code §247.025 which provides that the HHSC executive commissioner shall adopt rules necessary for licensing assisted living facilities.